Excerpt:.....as arise in the present case, in order to determine whether directions should be given, the very object of the procedure, namely, the prevention of litigation, might be to a great extent defeated. secondly, there may be a case where there is clearly 'a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed',by which i take to be contemplated a case where the whole matter can be disposed of as between the defendant and the third party. if the judge is satisfied that there is such a question, and that it can properly be tried in the action, he will give directions as to the trial of it......the first defendant and the consideration deposited in court by the first defendant was drawn by poti velu pillai. the first defendant applied under rule 1 cf order 8-a of the code of civil procedure for issuing third party notice to the leeal representatives of poti velu pillai. the persons served with third party notice entered appearance and objected to the same. their objections were overruled and {he court passed an order stating that there was a question to be tried as to the liability of the third parties and that the same would be tried after the trial of the stit. the third parties have filed this revision petition against the order.2. the main ground urged on behalf of the petitioners is that the suit was not maintainable and that the court should have considered the question.....

Judgment:ORDER

T.K. Joseph, J.

1. The plaintiff in 0. S. No. 543 of 1959 o1 the Munsiffs Court, Trivandrum, sued for cancellation of a decree for- specific performance of an agreement for sale of immovable property and recovery of possession of the property from the first defendant. The decree sought to be cancelled had been obtained by the first defendant against the second defendant, the father of the plaintiff who had sold the property to one Poti Velu Filial, after agreeing to sell the property to the first defendant. In execution of the decree, the court executed the sale deed to the first defendant and the consideration deposited in court by the first defendant was drawn by Poti Velu Pillai. The first defendant applied under Rule 1 cf Order 8-A of the Code of Civil Procedure for Issuing third party notice to the leeal representatives of Poti Velu Pillai. The persons served with third party notice entered appearance and objected to the same. Their objections were overruled and {he court passed an order stating that there was a question to be tried as to the liability of the third parties and that the same would be tried after the trial of the stit. The third parties have filed this revision petition against the order.

2. The main ground urged on behalf of the petitioners Is that the suit was not maintainable and that the court should have considered the question of maintainability of the suit before issuing third party notice. Another point urged is that if the trial is to proceed with the third parties on record, they should also be allowed to participate In the trial from the initial stage. After hearing both sides I am satisfied that the learned Munsiff did not pay attention to relevant aspects.

3. It is stated in the plaint that the parties are governed by Hindu Mithakshara Law and that the property in question was obtained by the second defendant from his maternal grandmother. It is urged on behalf of the petitioners that the plaintiff cannot have any interest in the property during her father's lifetime and that the suit is not maintainable on this ground. Another ground urged in support of the argument that the suit is not maintainable is that under the law in Travancore, which was in force when the former suit was decreed and the money paid to Poti Vein Pillai, there was no covenant of title, express or implied, and that the first defendant cannot therefore claim indemnity against Poti Velu Pillai's estate. The first point was one which could be disposed of as a preliminary issue. In fact there is an issje in the suit, 'whether the suit is maintainable'.

4. The corresponding provision in England is Rule 1 of Order 16[a) of the Rules of the Supreme Court. The law in England has been summarised as follows in ths Annual Practice, 1960, page 386 :

'But where the claim against the third party was an independent claim for damages, or the question whether there was a right to indemnity was more difficult and complicated than any Question in the action, and might never arise, leave to bring in a third parly was refused'. The following observations of Rigby, L. j., in Baxter v. France (No. 2), (1895) 1 QB 591, are relevant in this connection :

'The third party procedure is intended for the useful purpose of enabling a defendant to bring in as a third party another person, whether a co-defendant or not, in order that all Questions as to contribution or indemnity may be settled between them in the action. It is obvious, however, that, if it were necessary to decide very doubtful questions of indemnity, and for that purpose to deal with difficult matters of principle, such as arise in the present case, in order to determine whether directions should be given, the very object of the procedure, namely, the prevention of litigation, might be to a great extent defeated. For in such cases there would always be en appeal on the question whether directions should be given. A case may be one in which the right to the Indemnity or contribution claimed is clear; and in that case the judge will have no difficulty in deciding upon the claim at the time when it comes before him upon thR summons for directions. Secondly, there may be a case where there is clearly 'a question proper to be tried as to the liability of the third party to make the contribution or Indemnity claimed', by which I take to be contemplated a case where the whole matter can be disposed of as between the defendant and the third party. If the Judge is satisfied that there is such a question, and that it can properly be tried in the action, he will give directions as to the trial of it. But there is a third class of cases, of which I think the present is an example, where the question whether there is a right to indemnity is far more difficult and complicated than any questions in the action.

The appellants in the present case ask us uoon a hypothetical state of facts to determine very difficult, questions of law which may be rendered wholly unnecessary by the result of the trial of the action. On the ground that this is not a case in which there is a question as to the liability of the third party proper to te tried in the action, and without expressing any opinion on the construction of the Conveyancing and law of Property Act, 1881, I come to the conclusion that the decision of the [earned Judge at Chambers was correct'.

may also refer to the decision in Birmingham and District Land Co. v. L and NW Rly. Co., (1886) 34 Ch. D. 261. The Head-note reads ;

'In order to bring a case within Order XVI, Rule 48, it is not enough that if the plaintiff succeeds the defendant will have a claim for damages against the third party, but the defendant must have against the third party a direct right to indemnity as such, which right must --generally, if not always -- arise from contract express or implied, and that there was no ground for implying such A contract'.

5. The question has been considered at Iength by Ramaswamy, J., in Thiruvannamalai Adhinam Sri Daivasi-gamani, In re, 168 Mad LW 371). I am of opinion that the matter requires reconsideration in the light of what has been stated above. Accordingly, I set aside the order and remand the matter for fresh decision, The learned Munsiff will consider the question of maintainability of the suit before passing orders on the first defendant's petition. In case the suit is found to be not maintainable, the question of third party procedure will not arise. If the decision of issue No. 1 is in favour of the plaintiff, the learned Munsiff will consider whether the first defendant is entitled to be indemnified by Poti Velu Pillai's estate. The civil revision petition is allowed as indicated above, but in the circumstances of the case I make no order as to costs.